By Charles C. W. Cooke
Thursday, May 05, 2022
As if determined to supply a concrete punchline for a joke that has been hanging, half-formed, in the air since late Monday night, the New York Times’ Bret Stephens has penned what might best be called the Conservative Case for Keeping Roe v. Wade. If the Supreme Court overturns Roe, Stephens proposes, it will be making “a radical, not conservative, choice.” Why? Because, per Stephens, “conservatism” is “the conviction that abrupt and profound changes to established laws and common expectations are utterly destructive to respect for the law and the institutions established to uphold it,” and because nixing Roe would represent such a change. “Justices,” he concludes: “Be prudent.”
Properly understood, conservatism does indeed demand some respect for the status quo. But it does not require its adherents to oppose all change — especially when that change simply restores the status quo ante — and it certainly does not demand that they accept pernicious lies in perpetuity simply because those lies have managed to survive for a few decades. Roe and Casey are lies. They were lies when they were written. They were lies ten years after they were written. They are lies today. There is nothing remotely un-conservative about wishing to expose them as lies and remove them summarily from our law.
Back when Roe was first decided, the pro-choice legal scholar John Hart Ely said it was “not constitutional law” and “gives almost no sense of an obligation to try to be.” The equally pro-choice Laurence Tribe concurred with this assessment, writing that “one of the most curious things about Roe is that, behind its own verbal smokescreen, the substantive judgment on which it rests is nowhere to be found.” In the Wall Street Journal yesterday, the socialist legal scholar David J. Garrow reminded readers that, whatever they might think about abortion as public policy, Justice Alito’s observation that Roe’s reasoning was “exceptionally weak” is “a conclusion with which even historians who fervently back abortion rights can’t cavil.” Clearly, conservatives shouldn’t, either.
Stephens doesn’t seem to think that any of this matters. Indeed, he seems to believe that conservatives should be less upset by the Court’s original “abrupt and profound changes to established laws and common expectations” than by the people who have spent the last 50 years trying to reverse them. This is silly. The Constitution is the highest law in the land, and to demand that the Court enforce that law incorrectly forever because it has enforced it incorrectly for the past half century is absurd. As conservatives understand, incentives matter a great deal. Were Stephens’s approach to prevail, the United States Supreme Court would be blessing a structure that rewarded liars, punished truth-tellers, and set in aspic the idea that if a transient majority of justices decides to make something up, their contrivances must be respected forever.
One wonders if Stephens has ever met anyone who disagrees with him on this point. By overturning Roe and Casey, he writes, the Court “will be lighting another cultural fire — one that took decades to get under control.” But, quite clearly, that fire isn’t “under control,” and it most certainly does not need “lighting.” Far from being a mere relic or abstraction, the fire is raging still. It was lit in 1973, it was sustained in 1992, and, 50 years later, it continues to burn. At some level, Stephens seems to intuit this — to his credit, he concedes that Roe “helped turn confirmation hearings for the Supreme Court into the unholy death matches they are now,” and that “it diminished the standing of the court by turning it into an ever-more political branch of government” — and yet, inexplicably, he is unwilling either to place the blame for these developments on whom it belongs or to conclude that the best way of tamping down the conflagration is to get the Court out of the issue altogether. As Justice Scalia noted in 1992, “national politics were not plagued by abortion protests, national abortion lobbying, or abortion marches on Congress, before Roe v. Wade was decided,” nor was the Supreme Court inundated with “the marches, the mail, the protests aimed at inducing us to change our opinions.” Stephens worries that the Court’s abortion jurisprudence might come to “discredit it.” This already happened. Where has he been for the last 50 years?
It is a fitting tribute to the manner in which Roe tends to distort our politics that Stephens does not apply the approach he recommends here to any other debate of note. When discussing Roe v. Wade — which is 50 years old, and which has no basis in the Constitution’s text — Stephens warns that a reversal would damage “American steadiness and sanity.” When discussing the Second Amendment — which is 231 years old, which is explicitly enumerated, and which, unlike Roe, was wholly uncontroversial when it was proposed — Stephens suggests that “the true foundation of American exceptionalism should be our capacity for moral and constitutional renewal, not our instinct for self-destruction.” There are many people in America who hold those two views simultaneously, and they can be called many things — but “conservative” is not one of them.
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